### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00082- CR

Ur ie l R odr igu e z , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 331ST JUDICI AL DISTRICT NO. 30219 39, H ONO RAB LE MICH AEL J. MCCORM ICK , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Uriel Rodrig uez appea ls from judg ments of conviction for indece ncy with a child by contac t and ag g ravated sexual assault of a c hild. See Tex. P en. Code Ann. § 21.11 (West 2003), § 22.021 (West Supp. 2005). The jury assessed a

twenty -y ear

prison term for

the forme r off

ense a nd a thirty -five y ear

term for the latter. In his only

point of err or, Rodrigue z asserts that the trial cour t violated his Six th Amendment confrontation right by limit ing his cross-e x amination of the outcr y wi tne ss. We w ill ov e rr

ule thi s c on te nti on

and a ff ir m th e c on vic tio ns . The c omplainant, L
. P., was one of three children of J esus Pardo a

nd Maria Ma

rtinez Robledo. Pardo and Robledo we re ma rried in 1994, the y ear L
. P. was born, sepa rate d in November 2000, and divorc ed in Marc h 2002. I n J une 2002, when the alleg ed incidents took place, Robledo
and he r c hil dr e n we re liv ing wi th Rod ri g ue z. Pard o ha d vis itatio n wi th the c hil dr e n o n w e e ke nd s.2 L . P. testified that Rodriguez re gu l ar l y rubbed he r che st, touched her g enitals, and penetr ated he r vag ina with his finge r. She made her first outcry to he r fathe r on a Fr iday afte rnoon,
a ft e r h e ha d p ic ke d h e r a

nd he r s ibl ing s u

p f or the we e ke nd . Pa

rd o te sti fi e d th a t he no tic e d th a t L . P.
seeme d depre ssed and a sked her what wa s wrong . L . P. said, “Ang el [Rodriguez] is mean,” and beg an to cr

y . Pardo stopped at a

park a nd talked to L . P. while the other c hildren play ed. Dur ing this conversation, L . P. told P ardo w hat Rodrig uez had done to her . Pardo stopped a pa ssing police
car and re ported what his daug hter ha d said.

Def ense c ounsel beg an his cross- examination of P ardo by asking if it was true that his marriag e to Robledo ended be cause “y ou assaulted your wife .” Pardo r eplied that this was true
. Couns e l ask e d Par do if he “ br ok e he r w ri st a nd
. . . b ro ke he r h ip. ” Pard o d e nie d th is. At thi s p oin t, the State objecte d and ther e wa s a discussion outside the jury ’s pre sence . We gle an f ro m the discussion that defense counsel wa s basing his questions on alleg ations made in Robledo’s application for

a prote ctive orde r i ssued at the t ime she and Par do separ ated. The State argued that t h e p ro t ec t i ve orde r and its contents we re irr eleva nt. Defe nse counse l responded that the order sh ow e d Pa r d o ’ s “ p r o p e n s i t y f o r v i o l e n c e ” an d

t h a t“ h e i s j e a l o u s an d

c o mp u l s i v e . I tg o e s t o my de fe ns ive the or

y that he may be the pe rp e tr a tor , no t my c lie nt, and

the re a so n w hy

he a ssa ult e d h is wife, Judge , is beca

use anothe r man looked at her, a nd that cer

tainly g oes to hi s cr ed i b i lity

and mot ive .” Th e c ourt

su sta ine d th e State ’s ob

je c tio n, ru lin g tha

t th e pr ote c tiv e or de r w a s in a dmi ssi ble he ars ay and th at th e de ta ils of

the a dmi tte d a ssa

ult we re no t r e le va

nt t o Pa rd o’ s c re dib ili ty

a s a wi tne ss.3 Th e c ourt a llo we d c ouns e l to make an o ff e r o f p ro of

fo r the re c or d. I n r e sp on se to counsel’s que stions, P ardo de nied being“jea lous and possessive” of R o b l edo and said he did not
reme mber a ssaulting his wife “bec ause she was looking at another man.” Par do denied br eaking Robledo’s hip or injuring his son by pushing him down a

nd cutting his he ad. He acknow ledg ed that he did not take Robledo to the hospital immediately afte r the a ssault, but the next day
. As part of the Six th A mendment confr ontation r ight, a def endant must be g iven g reat latitude to show any

fac t that would tend to establish ill feeling , bias, motive, or animus on the par t of a w itness testify ing ag ainst him. De law ar e v . V an Ar sd all , 475 U.S. 673, 678-79 (1986). The rules of e vidence als o re co g nize the rig ht to impeach a w itness by proof of circ umstances or statements showing bias or intere st on the part of the witness. Tex. R. Evi d
. 6 1 3 (b ). Rodrig uez
c on te nd s th a t hi s c on fr on ta tio n r ig ht w a s viol a te d by the tr ia l cou rt ’s re fu sa l to a llo w h im t o c ro ssexamine Pardo reg arding R o b l edo’s alleg ations ref lected in the a

pplication for a

protec tive order
. He arg ues t hat t he trial court’s ruling frustrated his ability to develop the de fensive the ory that Pardo had a propensity toward violence and was the perpe trator of the alleg ed off enses. He complains that the jury “did not have the benef

it of hearing and observing [ Pardo’s] response s and re actions to [the] forbidden que stions.”

The prote ctive orde r is not in the rec ord
. Al l that we know of its contents is what we infe r from the questi ons counsel asked P ardo during the offe r of proof. The only issue prese rved fo r r e view i s whe th er the tr ia l c ourt re ve rs ibl y

e rr e d b y re fu sin g to a llo w d e fe ns e c ouns e l to a sk Pardo the que stions, and elicit the answe rs, desc ribed in the off er of proof.Th e ph oto g ra ph a pp e ars to h a ve be e n ta

ke n in a n e xami natio n r oo m. R ob le do is s tand ingwi th 1 her c hildren and smil ing. She is in street clothes, and there is no cast or other indication of medica l tr e a tme nt. 4

De sp ite its ru lin g lim iti ngPard o’ s c ro ss- e xaminatio n, the tr ia l c ourt oth e rw ise pe rm itted Rodr ig ue z to i ntr od uc e e vid e nc e of

Pard o’ s a lle g e d a

bu se of his fo rm e r w if

e and his children. D uring her c ross-examination, L . P. denied that Pardo e ver struc k her or her siblings, but she re called Par do hitting Robledo. She said that she we nt to the hospital w ith he r mother and f ather , and that th e do c tor

“ sta rt e d c he c kin g he r wh e re my da d ha d hitt e d he r. ” She a dd e d, “ Th e y c a lle d my dad up, and the y

told him t hat he wa s g oing to g o to jail.” J ames Pickett, a Children’ s Protective Servic es investig ato r, t estified that he w as familiar with the protec tive order that was in e ffe ct ag ainst Pardo. He sa id that it had been a mended t o permit Pardo to have wee kend visitation with the children. Pickett also testified that CPS had investigated a r eport of phy sical abuse of the c hildren by Pardo, but no injuries had be en found. Robledo testified for the defe nse. She said that duringher m ar ri ag e to Pardo, he phy sically

abused he r in the childre n’s prese nce “[a]ll the time.” Appar ently ref err ing to the inc ident acknow ledg ed by

Pardo and de scribed by

L . P., Robl edo said that she went to the hospital after Pardo struck her and “fr actur ed my hands, and my waist was hurt.” She identified defe ndant’s exhibit t hree
a s a ph oto g ra phof he rs e lf take n at th e ho sp ita l. 1 Robledo also testified that Pardo abused their children. She sa id that Pardo forc ed her to eng ag e in se x ual activity in f ront of the children “[r]egula rly ever y night” and that he e x posed the childre n to pornog raphic videos. She identified anothe r phot og raph, de fense exhibi t one, showing Pardo si tting in a cha ir with their y oung son standing in f ront of him. Robledo testified thatPardo wa s shown the photog raph dur ing his c ross-examination. He said that he was wearing 2 a swimming suit when it wa s taken. 5 P ar d o wa s n ak ed i n t h i s p h o t o grap h an d t h at h e “ al wa y s ” w en tar o u n d t h e h o u s e w i t h o u tcl o t h i n g. 2 Robledo testified that Pardo hi t the children “a lot” and did not exercise his visitation rights for two y ear s afte r the separ ation. She said that Pardo beca me “ver y ang ry ” when he lear

ned that she w as li v in g w it h Ro dr igu e z. Robledo was aske d by

defen s e co u n s el if she knew “of a ny sexual abuse or a

ny touching or any

thing inappr opriate be tween Jesus Pardo and [L
. P.] .” She answe red that Pardo “use d to behave toward he r in a fa shion that was not g ood.” Aske d to expl ain, she said, “ He use d to take my daug hter a

nd pick her

up and ca

rry her a nd hold her and kiss her in the mouth and tell her that he wa s g oing to love he r. He used to fondle he r all over .”

Assuming that the t rial court erre d by ref using to pe rmit Rodrigue z to cross-examine Pardo as shown in the of

fer of proof, we are satisfied bey ond a re asonable doubt that the err or wa s h ar mless. Se e Va n A rsd all , 4 7 5 U
. S. a t 6 8 4
. Pa r d o a d mi tt e d

b e f o r e th e ju r y th a t h e a s s a

u lt ed Robledo, resulting in the ir separ ation and ultimate divorce , and the jury hear d L . P.’s and Robledo’s descr iption of this i ncident. The jury knew that Robledo obtained a protec tive order ag ainst Pardo and th a t t h e r e h a d b e e na CP S i n v e s ti g a ti o nr e g ar d in g a ll e g e d p h y s ic a l a

b u s e o f th e c h il dr e nby Pard o . The jury

also hea rd Robledo’s testimony

acc using Par do of sexual and phy sical abuse of herse lf and he r childre n. The de fense emphasized P ar d o ’s phy sical abuse of Robledo in closing
argume nt. Con sid e ri ng the re c or d as a wh ole , we c on c lud e that Rodr ig ue z ha d a n ampl e op po rt

un ity6

to dev el o p his defensive theory that Pardo wa s the “true perpe trator” who, for that self-ser ving
r e a s o n , te s ti f

ie d a g a in s t R o dr igu e z. The point of er

ror is over

ruled a nd the judg ments of conviction ar e af firmed.

__________________________________________ Be a Ann Smith, J ustice Be fore J ustices B . A. Smith, P atterson a nd Pury ear Affir med Filed: August 4, 2006 Do No t Pu

bli sh